Conscience as Sacred Property

Caesar has provided us with a lamentable choice. Today, it is not the coliseum, nor are Christians being driven to the catacombs under totalitarian persecution. The choice presented to us, however, is no less unjust.

In fact, the modern American-political complex – today’s version of Caesar — may be perfectly happy with Christians and other people of faith relegating themselves to private enclaves of religion. The right to worship has never been stronger — so long as that “right” remains out of sight, silent, and secluded. What we face today is not a question of whether or not someone is entitled to religion and, to some degree, a certain amount of private liberty within that religious belief. We now face a moment in which the free exercise of that religion in all of personal and public life has been severely called into question.

Caesar is having his moment. How ought Christian Americans respond?

Caesar’s Choice

The conflict presented is summarized by an oversimplified statement: under the Affordable Care Act, the Federal government is asking individuals, businesses, and ministries to obey government instead of God.

This conflict is rooted in the debate over the so-called, “contraceptive mandate” of the Affordable Care Act (ACA). Though billed as a way in which those suffering without health insurance would be relieved with mandated coverage, the ACA has been most rigorously debated over the forced provision of abortion-inducing medication.

Ironically, most Christian business owners have no objection (beyond the understandable economic objections and questions) to providing health insurance to employees. By and large, Christian business owners are pleased to provide the benefit of health insurance. Whether this is out of a sense of tradition, obligation, or a genuine desire to increase human flourishing, among the ways Christian business owners care for their employees is to provide for their health and well-being.

Where things have run aground morally is in the requirement that business owners take a portion of the profit from their business – a portion that grew necessarily more narrow upon the implementation of the ACA — and redirect it to their employee health plans, plans that the government now requires provide access to contraceptives.

For many evangelical Christians, not even contraceptives were a big deal. Unlike our sometimes co-belligerent friends in the Catholic Church, protestants do not object to certain forms of contraceptive. That is, so long as those medications actually function to merely prevent conception. Therein lies the problem.

The ACA points to the Food and Drug Administration’s (FDA) list of approved contraceptives. Through various political machinations, the FDA has declared drugs like the “morning after pill” and the “week after pill” to be contraceptives, when most medical textbooks agree that the same make the womb inhospitable — indeed, deadly — to developing human life. The fancy term for such chemical abortions is “abortifacient.” Most of us recognize it for what it actually is: a chemical destruction of innocent human life.

Caesar, Conscience, and the Courts

And, so we arrived at the crux of the issue: for business owners who believe obedience to God requires them to honor human life from the point of its conception until its natural conclusion, the Federal government’s mandate forces an unconscionable choice: obey government or obey God.

For over 300 plaintiffs in at least 94 cases, that is a choice they refused to make until every avenue of appeal has been exhausted. Interestingly, of the cases that have been decided, 52 have been granted relief. Only 7 have been told that the constitution’s guarantee of religious liberty does not extend to their business.

Among them is a household name, not one used in association with religious liberty, but for quality craft products and picture framing. Hobby Lobby finds itself embroiled in a battle that it neither chose, nor thought it would ever have to fight. The Green family has recognized the choice they have been asked to make and have chosen obedience to God, rather than bend the knee to Caesar. Whether the owners of Hobby Lobby must pick a side under Caesar’s choice rests now in the hands of the Supreme Court of the United States.

Caesar’s Choice in History

It is difficult to find a corollary to the ACA in our nation’s history. Indeed, even in the world of the First Amendment, it is hard to see why this is an issue. Corporations have been granted other First Amendment protections; is it too much to ask that a corporation’s conscience would reflect that of its owner?

And, as speech goes, affording a family-owned business the freedom they already possess (the freedom to live and work according to their beliefs) is not that far-fetched. The First Amendment has been found to protect the traditional things we think of when we think of the freedom of speech, like public speeches, art, and, in the negative cases, those who burn the flag, their bra, or a draft card. The First Amendment has also protected brown-shirted Neo-Nazi’s marching in hometown America’s parades, certain forms of pornography, and even nude dancing. The First Amendment is only strengthened by extending its protective reach to business owners who choose obedience to God over government based on conscience.

Perhaps the dividing line is the profit motive, but that’s an arbitrary line. Can we really say that Habitat for Humanity has a conscience just because it is a nonprofit, but Guinness does not (and it recently displayed that it indeed does, foregoing participation in Boston’s St. Patrick’s Day Parade because the parade banned LGBT groups)? Money talks and, if you wish to see the conscience on display of any company, look at where that company chooses to spend (or withdraw) its discretionary capital.

And, if a company can be said to be denied First Amendment protections, what does that mean for the nonprofit you volunteer with each week? What about your church? Corporations are as much a legal fiction in the for-profit world as they are in the not-for-profit and ministerial domain. What governs the for-profit world, with only slight modifications, will govern the nonprofit corporate sector as well. Eventually.

Conscience in History

Not only is the HHS Mandate remarkable in history, so is the response to it. Have we ever seen such a broad declaration of conscience before?

The Civil Rights Act (CRA) did not find business owners pushing back against the demands of their government. Why? Because the CRA rectified a moral wrong. In contrast, the ACA works a moral injustice upon the conscience of business owners. Business owners did not sue to enjoin the application of the CRA. And, the only nonprofit of which I am aware entered into any litigation over the CRA was Bob Jones University and even that has been dismissed by everyone from theologians to legal scholars as a veritable anomaly.

In other words, when government asked business owners of the civil rights era to comply with the CRA, it was a just request. That is why no businesses asserted claims of conscientious objections. There was no deference to conscience to be made. Other than outliers like Bob Jones, Christians in general saw no conflict between the CRA and the Bible (after all, millions of Christians in America and England were at war with slavery and a significant portion of that heritage cascaded into the civil rights era). Business owners could obey government and obey God. Not so with the ACA.

Madison’s Answer to Caesar’s Choice

James Madison has famously said, “Conscience is the most sacred of all property.” That is a helpful tool for us to understand the utter seriousness of the current debate. We would not stand for a government to take the physical property of a business owner, why would we give approval to a government attempting to take the property – “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual,” as Madison defined it – of conscience? We should not.

Core to Madison’s concept of property was the inclusion of religion: “He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.” For Madison, like many of our Founding Fathers, religion was no mere private avocation or affectation, confined to the concept of a, “right to worship.” Religion was and remains a possession core to one’s humanity, the undercurrent that informs the direction and depth of one’s private and public life. It cannot be contained to mere times of private, out-of-the-public eye times of private worship. It is a right to which one is afforded liberty in its exercise every bit as much – if not more than – the liberty to speak one’s mind.

Indeed, such a liberty is due ample protection by government. “Where an excess of power prevails,” says Madison, “property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions . . . Government is instituted to protect property of every sort . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”

And therein lies the problem we now recognize with the ACA’s contraceptive mandate: government has abandoned the protection of that property right – “the end of government,” as Madison put it – and sought, instead, to employ an “excess of power” to direct an individual business owner’s property right, the right of religious conscience. Rather than protect that property right, under the ACA, government has punished its free exercise.

Madison might say of the situation, as he did of property, “That is not a just government, nor is property secure under it, where arbitrary, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”

Caesar’s Injustice?

Whether we like it or not, we find ourselves in a moment in history in which Caesar has asked us to make a choice. If there is nothing higher than Caesar, let us be the first to lay down our legal arms in obedience to the political sovereign. Yet, that is not the case. Even the literal Caesar now realizes that the sun does not rise and set at his command, but at the command of the great Sovereign Creator of even government itself.

In light of that, we can safely, and justly conclude that no American family should be forced to choose between following their faith and submitting to unlawful and unnecessary government mandates.

Or, as Madison put it: “If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and property in rights.”

That must include the right to religious liberty and exercising one’s religious conscience in business.

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About the Author

Jeremiah G. Dys is Senior Counsel to Liberty Institute a nationwide law firm dedicated to defending and restoring religious liberty according to the vision of the Founding Fathers. He regularly appears local, state, and national media outlets in defense of religious liberty. Along with his wife and four sons, he lives on the edge of the country outside of Charleston, West Virginia.